Town Cannot Use Lack of License to Carry Firearms as Excuse to Avoid Complying with Arbitrator’s Award

An Essex Superior Court judge ruled late last month that the Town of Middleton, Massachusetts must reinstate a wrongfully-terminated police officer, even though the Middleton Police Chief has suspended the officer’s license to carry a firearm (“LTC”). The Superior Court judge’s ruling recognizes that allowing a police chief’s revocation or suspension of an LTC to prevent reinstatement after a lawful order of an arbitrator or other tribunal would effectively render the collectively-bargained protections against unjust discipline null and void. (Click here for the text of the Superior Court ruling.)

The case involves Brian Kelley, a veteran Middleton police officer who became involved in a domestic dispute in Maine on May 1 2013 that resulted in criminal charges against him. While the criminal case was pending the Middleton Police Chief exercised his discretion under G.L. c. 140, § 131 to suspend Kelley’s license to carry a firearm. Because the collective bargaining agreement between the Town of Middleton and the Middleton Police Union made the possession of an LTC a condition of employment, Kelley was unable to work and his employment was eventually terminated after the Town failed to reappoint him to his position. Subsequently, all the charges against Kelley were dismissed and he and his Union, the Middleton Police Benevolent Association, MassCOP Local 292, asked for him to be returned to his position. But the Chief and the Town refused to take Kelley back.

The Union filed a grievance on Kelley’s behalf under the CBA, which eventually reached a neutral arbitrator. MassCOP assigned Attorney Joseph Sandulli of Sandulli Grace, P.C. to represent the Union in the matter. Arbitrator Mary Jean Tufano ruled on November 20, 2014 that the Town did not have just cause to discharge Kelley. As a remedy, the arbitrator ordered the Town to reinstate Kelley with full back pay and benefits. In her decision, Arbitrator Tufano explained that while she had no authority to give Kelley back his LTC, she had the power and authority to make him whole for the Town’s violation of the CBA and that reinstatement was an essential element of the make whole remedy. She interpreted the entire CBA – including the remedial authority granted to her by the parties – to require this result. She noted that in light of the Chief’s unique discretion regarding LTCs, literal enforcement of the “LTC as condition of employment” language would mean that the Police Chief could effectively terminate the employment of any employee without just cause merely by suspending or revoking his or her LTC. She also noted that the reason given by the Police Chief for suspending the LTC – the pending criminal charges – no longer existed.

The Town of Middleton refused to obey the decision of the arbitration and instead filed a petition to vacate the arbitration award pursuant to G.L. c. 150C. MassCOP assigned Attorney John M. Becker, of Sandulli Grace, P.C. to represent the Union on the appeal. The case came before Judge Peter Lauriat in Essex Superior Court, who after briefs and oral argument, on February 28, 2017 denied the Town’s petition to vacate and instead confirmed the award. In ruling in the Union’s favor, Lauriat rejected the Town’s arguments that reinstating Officer Kelley violated public policy and would require the Town to violate the law. Instead of complying with the arbitration award, the Town on March 8, 2017 filed a motion asking the Superior Court to reconsider its decision, which is pending at this time.